Recommendations

Chapter 2 Publication contempt

Recommendations

R1 For the purpose of preserving the right to a fair trial, a new statutory provision should be enacted prohibiting publication or reporting of an arrested person’s previous convictions and any concurrent charges. The provision should require the pre-trial or trial court to keep the prohibition under review and authorise the court to lift, extend or vary the prohibition as necessary in any particular case. The prohibition should apply from the time a person is arrested and only where the person is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence).

R2 A new statutory provision should authorise a court to make an order postponing publication of other information if the court is satisfied that this appears to be necessary to avoid a real risk of prejudice to a fair trial. The court might make such an order at any time after a person is arrested and before the trial has been completed and must make it for a limited period, not extending beyond the completion of the proceedings.

R3 A new statutory provision should authorise a court to make an order that an online content host take down or disable public access to any specific information covered by the statutory prohibition in R1, or any suppression order made under R2.

R4 A provision modelled on section 210 of the Criminal Procedure Act 2011 should give members of accredited media, and any other person reporting on the proceedings with the permission of the court, standing to initiate or be heard on any application for an order in respect of R1 to R3 or any application to renew, vary or revoke any order.

R5 Subpart 7 of Part 6 of the Criminal Procedure Act 2011 should be amended to give a right of appeal against any decision to make or refuse to make a suppression order under R2 or R3 or to renew, vary, or revoke a suppression order under R2 or R3 or lift, extend or vary the prohibition in R1.

R6 A new statutory offence provision modelled on section 211 of the Criminal Procedure Act 2011 should provide:

(a) It is an offence for any person, knowingly or recklessly, to publish material in breach of the statutory prohibition in R1 or any suppression order under R2 or take down order under R3.

(b) The offence in (a) should be punishable:

(i) in the case of an individual, by a term of imprisonment not exceeding 6 months or a fine not exceeding $25,000; or

(ii) in the case of a body corporate, by a fine not exceeding $100,000.

(c) It is a strict liability offence for any person to publish material in breach of the statutory prohibition in R1 or any suppression order under R2 or take down order under R3.

(d) The offence in (c) should be punishable:

(i) in the case of an individual, by a fine not exceeding $10,000; or

(ii) in the case of a body corporate, by a fine not exceeding $40,000.

R7 There should be a new offence to replace the common law contempt of publishing information that interferes with a fair trial, which should be abolished: see R61 below. The new offence should apply from the time a person (the arrested person) is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence). Under the new offence provision, a person would commit an offence if:

(a) he or she intentionally publishes information that is relevant to an arrested person’s trial; and

(b) there is a real risk that the publication prejudices the arrested person’s right to a fair trial.

R8 The maximum penalty for the offence in R7 should be a term of imprisonment for up to 6 months or a fine not exceeding $25,000, or in the case of a body corporate a fine not exceeding $100,000.

R9 It should be a defence for a person prosecuted for the offence in R7 to prove on the balance of probabilities that:

(a) after taking all reasonable care the person was unaware and had no reason to be aware of the possibility or existence of the trial; or

(b) the person was the online host or distributor of the publication and after taking all reasonable care he or she was unaware and had no reason to be aware that it contained the information that created a real risk of prejudicing the arrested person’s right to a fair trial; or

(c) the publication was a good faith contribution to a discussion of public affairs; or

(d) the publication was a fair and accurate report of court proceedings held in public and published at the time and in good faith.

R10 Appeals in respect of the offences in R6 and R7 should be under subpart 3 (Appeals against conviction) and subpart 4 (Appeals against sentence) and not under subpart 5 (Appeals against finding of or sentence for contempt of court) of Part 6 of the Criminal Procedure Act 2011 because the offences in R6 and R7 are ordinary offences and not contempt of court.